Reflections on White Collar Crime and Federal Criminal Law

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In Defense of the Grand Jury (Part 3): Disclosure of Exculpatory Information

During the course of a grand jury investigation, a federal prosecutor may learn information favorable to the defense, perhaps even suggesting that the target of the investigation is innocent of any crime. What are the rules concerning disclosure of exculpatory information to the grand jury? And beyond what the rules require, what are the best practices a prosecutor should follow?

In my earlier posts on the federal grand jury (available here and here), I discussed how the grand jury, whose proceedings take place in secret, is a frequently misunderstood and sometimes controversial institution. One source of controversy is the one-sided nature of a grand jury presentation.

Disclosure of Exculpatory Information to the Grand Jury

The grand jury generally hears only from the government. The prosecutor presents the witnesses, documents and other evidence and ultimately asks the grand jury to return an indictment if the evidence establishes probable cause. The defense has no right to call witnesses or otherwise present its case. There is no defense attorney to object, cross-examine, or offer contrary evidence. The defendant himself has no right to testify.

This one-sided nature of the proceeding may seem to run counter to our most fundamental concepts of justice. How can the grand jury possibly make the right determination if it only hears one side of the story? But this argument misperceives the grand jury’s function.

The grand jury is merely accusatory, not adjudicatory. Its purpose is not to decide guilt or innocence or to weigh both sides of the case but to determine whether there is sufficient evidence to justify bringing the defendant into court to answer the charges. As such, part of its historic function is to serve as a shield against executive power. The government cannot simply run into court and file criminal charges on its own; it must first convince a panel of citizens in the same community that there is a basis for those charges.

In making that determination the grand jury needs to find only probable cause that the crimes took place, not the far higher standard of proof beyond a reasonable doubt that would be required for conviction at trial. And unlike a trial jury, a grand jury does not need to be unanimous; only twelve out of sixteen jurors need to find probable cause in order to return an indictment.

Many of the procedural protections we associate with a trial do not apply in the grand jury. If they did, grand jury proceedings could quickly become bogged down with endless hearings and disputes about the evidence being presented. A grand jury is simply making a threshold determination about whether there is a basis to proceed. It is not supposed to be “trial #1,” where we litigate every dispute and evidentiary issue, to be followed later by “trial #2” where we do it all over again with a higher standard of proof.

Accordingly, the defense generally is not able to challenge the evidence being presented to the grand jury or to present evidence of its own. With few exceptions, any such matters have to wait until pre-trial court proceedings or the trial itself, once the grand jury investigation is over and the case is indicted.

But this system must acknowledge a major caveat: an indictment alone can be devastating. It’s not much comfort to tell a wrongly indicted defendant, “It’s okay, now you can present your side of the case and be found not guilty at trial.” Trial may come only after two years of delay, a million dollars in legal fees, and severe damage to the defendant’s family, business, and reputation. That “not guilty” verdict at the end, even if it comes, is not going to feel like much of a victory. Simply being indicted can ruin someone’s life.

This fact, in turn, highlights the critical importance of the prosecutor’s obligations in the grand jury. Prosecutors, of course, must do everything they can to avoid indicting the wrong people. A fundamental part of the prosecutor’s role is to ensure that the innocent do not suffer. This requires recognition of the gravity of the decision to return an indictment and the potential impact on the person being indicted. The prosecutor’s duty is not to “win” by securing an indictment by any means necessary, but to ensure that justice is done. In the grand jury, the one-sided nature of the presentation makes that duty all the more critical.

Given these obligations and the nature of the grand jury, what should a prosecutor do when she comes across information favorable to the defense during a grand jury investigation?

The United States Supreme Court

The Supreme Court’s Answer: United States v. Williams

The Supreme Court confronted this issue in 1992 in United States v. Williams. Williams was indicted for bank fraud for allegedly misrepresenting the nature of some of his assets when applying for a loan. After he was indicted, he argued the prosecutor should have disclosed to the grand jury information demonstrating that he had always treated those assets the same way for his tax and other accounting purposes. This information, Williams claimed, would have demonstrated he did not misrepresent his financial position and lacked any intent to defraud the bank.

After a hearing, the trial court agreed with Williams that the prosecutor’s failure to disclose the information rendered the grand jury’s decision to indict “gravely suspect.” The court dismissed the indictment without prejudice (which would have allowed the government to present the case to a new grand jury, this time including the allegedly exculpatory information). The court of appeals agreed and upheld the dismissal.

Given the nature and history of grand jury proceedings, Williams did not claim in the Supreme Court that the Constitution itself required the government to present exculpatory evidence to the grand jury. But he argued the Court should create such a rule on its own, as part of its general supervisory role over the justice system, in order to ensure the fairness of grand jury proceedings.

A divided Supreme Court disagreed. Writing for a 5-4 majority, Justice Scalia discussed the historical independence of the grand jury, which is mandated by the Bill of Rights but is not textually assigned to any one of the three branches of government. As such, it functions as a “constitutional fixture in its own right.” Given the grand jury’s independence, he concluded, the Court does not have a general supervisory power that would allow it to create rules for grand jury proceedings.

The Court also relied on the role of the grand jury, which is “not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Williams’ proposed rule, the Court said, would effectively turn the grand jury into an adjudicatory body required to weigh both sides of the case. This would threaten to tie up grand jury proceedings in evidentiary hearings and disputes. It would also run counter to a long history of Court decisions refusing to scrutinize the adequacy of the evidence before the grand jury; such scrutiny would “run counter to the whole history of the grand jury institution.”

The Court concluded that if a rule requiring the disclosure of exculpatory information was good policy, Congress was free to enact a law requiring prosecutors to do so. The Court itself, however, declined to create such a rule on its own. Four dissenting Justices argued that a court should have the power to dismiss an indictment if the prosecutor withheld evidence that would “plainly preclude a finding of probable cause,” and that such a rule was necessary to limit potential prosecutorial misconduct.

Practical Challenges of Legally Mandating Disclosure

Congress has not taken the Williams Court up on the suggestion that it could pass a law requiring disclosure of exculpatory information. If Congress did so, enforcing such a requirement would raise a number of challenges. For example, what would happen when the defense and prosecution don’t agree over whether information is truly exculpatory? (Even the dissenting Justices in Williams agreed there was some doubt whether the proffered information really exculpated the defendant. If he treated the financial information the same way for tax and other purposes, might that not simply mean that he was a consistent crook?)

If the prosecutor didn’t agree that information proffered by the defense was exculpatory and declined to put it before the grand jury, what would be the remedy? Presumably the defense would file a motion with a judge and there would have to be a hearing. But reluctance to bog down grand jury proceedings with hearings and delays is precisely why the Court has consistently held that rules of evidence and procedure that apply during a trial do not apply in the grand jury. In a large, hard-fought white collar investigation, it would be easy to imagine the defense filing multiple motions concerning exculpatory information and potentially grinding the investigation to a halt.

In addition, it would be difficult to litigate such a motion while still preserving grand jury secrecy. How would the government demonstrate information was not truly exculpatory without being forced to reveal confidential information about the investigation? Even if the judge reviewed the papers in camera and did not disclose them to the defense, ruling on such a motion would require the judge to become enmeshed in the details and merits of the grand jury investigation to a degree completely contrary to the grand jury’s historically independent function.

Or suppose the prosecutor agrees that the information is potentially exculpatory, but it is contained in documents that are not self-explanatory. Does the defense then have the right to designate the witness who will explain the documents, to make sure they are properly understood? To write out the examination to make sure it is effective – or to conduct the examination itself? The same questions arise if the evidence consists of testimony from a witness: how does the defense ensure that the testimony is presented effectively without compromising grand jury secrecy? And if there are disputes about how to present the evidence, presumably a judge would again need to get involved.

In short, although creating a legal rule mandating the disclosure of exculpatory information may sound good in theory, it’s not difficult to see why the Court in Williams was reluctant to create such a rule, or why Congress has declined to do so.

DOJ Policy and Prosecutor Best Practices

Simply because disclosure is not legally mandated does not mean it should not take place. The Department of Justice has recognized this in the U.S. Attorneys’ Manual, which provides that if the prosecutor is “personally aware of substantial evidence that directly negates the guilt” of the target, that evidence should be disclosed to the grand jury. USAM 9-11.233.

Of course, although policies in the U.S. Attorneys’ Manual provide important guidance to prosecutors, they do not create enforceable rights. The prosecutor may be subject to discipline for violating a rule, but a defendant cannot move to dismiss an indictment on that basis. Some might also argue that terms such as “substantial evidence” and “directly negates the guilt” leave a fair amount of wiggle room and that DOJ policy should require more fulsome disclosure.

But for the good prosecutor there are many sound reasons to disclose exculpatory information to the grand jury, whether or not the information is substantial enough to require disclosure under the DOJ policy.

The first reason is simply fairness: disclosing such information is the right thing to do. A good prosecutor has no interest in “hiding the ball,” misleading the grand jury, or giving even a perception that the grand jury process was unfair. The U.S. Attorneys’ Manual also provides that a prosecutor must be “scrupulously fair” in the grand jury and ensure that the grand jury is not misled. USAM 9-11.010. That may require disclosing even information that is only marginally or potentially exculpatory.

A prosecutor with a good case should have nothing to fear from disclosing potentially exculpatory information to the grand jury. After all, such evidence will undoubtedly come up at trial. If you as a prosecutor are so concerned about the information that you think it might result in the grand jury not finding probable cause, then how are you ever going to get a trial jury with the same information to find guilt beyond a reasonable doubt?

Indeed, if you’re a prosecutor and you have information you fear might cause the grand jury not to indict, then you shouldn’t be thinking merely about whether you should disclose that information to the grand jury. You should be thinking about whether you should pursue the case at all. Certainly if you have “substantial evidence” that “directly negates the guilt” of the defendant, you’d better stop and consider whether the investigation should proceed.

There also are sound tactical reasons to introduce exculpatory information in the grand jury. It allows the prosecutor to probe and explore the evidence completely, through examination of witnesses and possible additional investigation. A full review of the information may lead to additional evidence that further exonerates the defendant, or evidence that demonstrates the information is not truly exculpatory. It is better to explore those details in the grand jury than to wait and potentially be surprised at trial.

Presenting the evidence to the grand jury also allows the prosecutor to see how the grand jurors react to the evidence, to hear what questions they have, and to discuss the evidence with them. Again, all of that can be incredibly useful to guide further investigative efforts, prepare more fully for trial, or to decide that the case should not be indicted and the investigation should be closed.

It All Comes Down to the Prosecutor’s Responsibility

Critics of the grand jury may argue that we need a rule mandating the presentation of exculpatory evidence because most cases never make it to trial. An unscrupulous prosecutor could conceal substantial exculpatory information from the grand jury, thinking that he or she will be able to coerce a guilty plea once the case is indicted and the exculpatory information will never come to light.

There is no doubt, as I’ve noted in other posts in this series, that a prosecutor bent on misconduct can abuse the grand jury process, cause tremendous harm, and perhaps even indict a ham sandwich. But a legal rule that tries to regulate the type of evidence put before the grand jury is probably not the solution. Good prosecutors are already going to consider themselves bound by DOJ policy and will want to disclose exculpatory information for the reasons I discussed above. Bad prosecutors who intend to abuse the process likely would find the rule easy to avoid. And the rule would raise all of the practical difficulties discussed above and fundamentally alter the nature of the grand jury.

Although concerns about prosecutorial misconduct in the grand jury are valid, the solutions need to focus primarily on the prosecutors themselves; on whom we hire to be prosecutors and how they are trained. Unless we do away with the grand jury entirely or fundamentally alter its centuries-old function, prosecutors in the grand jury are always going to have a great deal of autonomy and power. Given the one-sided nature of grand jury proceedings, it is particularly critical that prosecutors respect their obligations and recognize that with that great power comes great responsibility.

A grand jury has the right, the power and the duty to investigate. In New York, where I acted as counsel to the grand jury (as an assistant district attorney) we had a heritage of genuine grand jury investigations dating back to Thomas E. Dewey’s appointment in 1935 as a special rackets prosecutor. The grand jury then actually called witnesses and compelled testimony.

As an ADA I behaved as counsel to the grand jury, and conducted serious investigations. Grand Jurors, in Manhattan, are smart, sophisticated and willing to assist a good faith investigation; twenty three people asking questions will break down the reluctance of many witnesses to tell the truth. An ADA may not express of the credibility of a witness, but Grand Jurors can; questions from a member of the grand jury asking “do you expect us to believe that?” Has caused many a witness to reconsider.

Returning to the initial question no one is a defendant until the grand jury charges them; if they are reluctant to do so no prosecutor wants to try that case. Of course “exculpatory” evidence should be presented, because the grand jurors need to know not merely whether there is reasonable cause to believe that a crime was committed and reasonable cause to believe that the defendant committed the crime. The grand jury should also decided, if. And only if the first two elements are met, whether the defendant should be charged–whether the case is worth bringing. That may not be a real factor in robberies, assaults, and similar crimes of violence, although it may. It should certainly be a factor in some cases.

If the grand jury is conducting an,investigation, Katherine than listening to a truncated presentation of evidence, evidence bearing on the conduct, location, motives and history may all be important. If they cause a grand jury knot to indict the are “exculpatory” but only a fool would set himself up for the trial of a losing case because he kept relevant facts from the grand jury when the trial jury will be getting to hear them..